Originally Posted by
spotnik
Be careful with this one. First, you do have to pass through screening at the checkpoint.
Which is what I said.
If you exit the checkpoint into the sterile area before TSA personnel (BDO or not) complete your screening, bad things will likely happen to you.
If you're referring to a BDO who approaches me on the other side of the WTMD, after my things have been x-rayed, I believe you are mistaken. As I read the case law, you can exclude me from the sterile area if I have weapons or explosives -- that is the sole and very limited function of the administrative search procedure. I am not required to answer any of your questions, nor am I even required to talk to you. You can not physically prevent me from leaving the checkpoint and, if you call for a LEO and tell him that you wish him to detain me because I refused to answer your questions, you and the TSA will find themselves on the receiving end of a lawsuit.
Second, TSA considers gate screenings to be part of their screening operations.
I am aware of that. I consider them unconstitutional, based on the my review of the case literature that defines the scope of the administrative search procedure, as well as related case law involving random checkpoints. If you're interested, I'd be happy to explain, with cites to the cases, why I believe gate searches are unconstitutional. However, it will have to wait until this weekend as I am too busy tomorrow with work.
If you refuse gate screening, you are refusing TSA screening procedures.
If I refuse gate screening, I am refusing an unconstitutional usurpation of rights reserved to the people pursuant to the Fourth and Fifth Amendments.
This may make for an interesting test case one day, but it may also cause problems for your immediate flight plans.
I would expect it to cause problems for my immediate flight plans. That's a prerequisite for the suit against Janet Napolitano, i.e. there must be actual harm that results from the government's violation of constitutional rights. I might add, and please don't take this personally because it's not so intended, that I find it disgusting and completely un-American that TSA's position is, essentially, challenge our procedures because you believe they are illegal and we will make trouble for
you.
I don't know why you've included this link. TSA does not make the law nor does it determine whether its administrative procedures are constitutional. That is solely the function of the judiciary, who decide the constitutionality based on legal arguments presented by lawyers like myself, and not based on PR published on TSA websites. I am no stranger to arguing before federal District Court judges, and justices who sit on Circuit Courts of Appeal. I am admitted to the United States Supreme Court and, should I decide to pursue an action against DHS and Ms. Napolitano, I expect that I would receive plenty of support from the ACLU and similar organizations that find the usurpation of constitutionally-secured rights by TSA as repellent as I.
You seem like a reasonable and intelligent person (and unlike one or two other TSOs who post here). In fact, overall, with the exception of the aforementioned one or two, I'm impressed, overall, with most of the TSA personnel who post on FlyerTalk. I'm sure you're all sincere and only trying to do your jobs to the best of your abilities. However, though I may respect you as individuals, I feel it is my civic duty, both as a citizen and an officer of the court, to oppose attempts by my government to usurp powers expressly denied it by the Constitution.